Mohamedi Khatibu Ally vs Mwanakama Hemedi Ally (Misc. Civil Application No. 9 of 1999) [1998] TZHC 2244 (24 December 1998)

.. IN THE HIGH COURT OF TANZANIA AT MTWARA MISC. dtv:r1 APPtIATION o •. 9 OF 1999· In·the matter of Application for leav to ,· '• Appeal to the Court of Appeal of Tanzania And In the matter of (PC) Matrimonial Appeal No; 1 of 1997 High Court of Tanzania at .Mtwara (Hono MOSHI, J.) MOID,\MEDI KHATIBU ALLY •••••••APPLiCANT versus: MWANAKAMA HEMEDI ALLY • • ••• o .RESPONDENT RULING The applicant MOHAMED KHATIBU ALLY is applying for leave to appeal to the Court of Appeal of Tanzania an;;;ifor certificatJ that there are points of law to be determined by the Court of Appeal~ The matter had originated from Mtwara Urban Primary Court e the espond.ent MWANAKAMA HEMED ALLY had petitioned for divorce. The mai.Ii ground for divorce in that case was a quarrel over ownership of 13 bags of paddy. The trial Court found as a matter of fact that those bags were the property of the respondent. A ·decree of divorce was granted and the respondent was declared to be the lawful owner of those 13 bags of rice. The applicant appealed before Mtwa:ra District Court against the or-d-er declaring the respondent to be the owner of the said 13 bags of paddy. The District Court srdered a separate suit for the said 13 bags of rice. The respondent was aggrieved. She appealed before this Court which held that since the 13 bags of rice was the main ground for the petition of divorce, it was necessary for the trial Court to decide to who was the owner, The order of the first appellate Court was quashed and that of the trial Court was restored The applicant was aggrieved. He is now applying for leave to appeal to the Court of Appeal and for certificate that there are points of law which must be determined by the Court of Appeal. He listed the alleged points of law as follow: (a) Whether it was proper for the trial Court to adjudicate on the extrenenous issue of ownership of the matrimonial ••• /2 •••

• 2 assets in a cause specifically instituted to determine divorce petition. (b) Whether the Court was correct in holding that the respondent was entitled to all 13 bags of rice produced during the existence of the marriage between the spouses which was not private property of the respondent~ The respondent 0 s learned Counsel Mr. Kumwembe called upon this Court to dismiss this application on the ground that the alleged points of law are not points of law but points of fact. I have carefully considered the overall circumstances surrounding this <taSe. The question as to who was the owner of the 13 bags of rice is a matter of fact which does not qualify to b? placed before the Court of Appeal for determination. (b) The question of whether the said 13 bags of rice were earned jointly by the applicant and the respondent during the existence of their marriage is also a matter of fact which does not quaJ.ify to be placed before the Court of Appeal for decision.

if,:i.: l-- (a) The question of whether it was proper for the trial Court to adjudicate on the issue of the ownership of the 13 bags in a cause sp specifically instituted to determine divorce petition is a question of law. But the judgment of this Court is very clear on how the petition of divorce and declaration of ownership o:f those 13 bags were inseparable. There is therefore nothing worth consideration and determination by the Court of Appeal for the development of either the Law of Marriage Act -1971 or our Civil Procedure Code 1966. It is upon the above r.P-asons t:h:=i.t I refuse to grant leave to appeal to the Court of Appeal and I refuse to certify that the intended appeal involves points of law worth consideration and determination by the Court of Appeal. The costs of this application to follow the event. /, k f/ . ' ,;, ___ __ "·•1,,,l s. No KAJI JUDGE 24.12e98 Court: Ruling has been delivered in the presence of the applicant in person and Mr. Kumwembe learned advocate for tnP ~~e~~~~Pnt; this ••• /3 •••

B/C: Kaienje (Miss) .. 3 ... , :;, . .--,,. s. • KAJI JUDGE 24.12.98